Person Facing Sexual Harassment Enquiry Can't Be Represented By Lawyer Or Next Friend Before ICC, Will Prejudice Complainant: Delhi HC

The Delhi High Court has said that allowing a person, who is facing a sexual harassment enquiry before the Internal Complaints Committee (ICC), to be represented through someone with legal background will create a prejudice for the complainant, whose case is also being considered by the committee without aid of a legal practitioner or next friend.

Rule 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules states that parties in question shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of proceedings before the ICC. The plea before the court contended that ICC is deemed to be vested with powers akin to a civil court and a person should be entitled to be represented by a person who is capable of conducting cross-examination of the complainant.

Rejecting the prayer seeking that the petitioner, who is facing an enquiry before the ICC, be permitted to be represented through a person with legal background or a next friend, other than the legal practitioner, Justice Sanjeev Narula said:

"If the Court would allow such an interpretation, then this provision would become redundant, and a floodgate of law graduates, who may not be enrolled with the bar councils to become an 'advocate' but are still practicing law, would pour in. The purpose of keeping the proceedings fact-based and free expert legal advisory, would be lost".

The petitioner had withdrawn an earlier plea that challenged the rule and in his subsequent petition restricted his prayer to allow him to be represented through a person of his choice.

"Once the Petitioner gave up the challenge to the provision, he cannot be permitted to seek an alternate prayer in the nature of relief (iv) above in absence of any enabling provision under the Act or Rules which entitles the Petitioner to be represented, as the bar under Rule 7(6) would certainly apply," said the court.

The petitioner had essentially challenged an e-mail communication dated September 22 from the ICC wherein his request to engage an advocate was declined in view of an express bar to legal representation under Rule 7(6).

Ruling that the plea is not maintainable, Justice Narula said that a successful challenge to the vires of Rule 7(6) before the Division Bench would have entitled the Petitioner to be represented through a legal practitioner. However, the single judge added that it is bound to respect the law as it stands.

"Petitioner's insistence to be represented through a friend, amounts to a reading down the expression of Rule 7(6), which could only have been done in the earlier proceeding at the stage of examining the vires of Rule 7(6). It is not for this court to interpret or dilute the mandate of the statute when no challenge has been made before it," it said.

Observing that the prayer is being insisted upon as a matter of right in sheer absence of any enabling provision, the court said that to allow such a request by ignoring the bar under Rule 7(6) would mean that the word "legal practitioner" under the provision would have to be read in a manner that it only includes an advocate registered under the Advocates Act, 1961 and not a law graduate.

"This construction again amounts to interpretation and dilution of Rule 7(6), which the court can only consider when reading down the provision in a challenge to the vires of Rule 7(6), which is not the case before the undersigned," the court said.

The petitioner before the court was a law graduate himself. During the course of hearing, his counsel told the court that although the name of the next friend who will represent him has not been disclosed, it would be a person with a legal background or a legal understanding so that he can conduct cross-examination.

"It is indeed baffling that the Petitioner, who is himself a law graduate, which in general parlance would mean an 'advocate', wants to take assistance of a next friend, who has legal background but is not registered as an advocate," said the court.

The court further said that the inquiry may have a far-reaching consequences for a person against whom allegations have been levelled, it cannot be lost sight of that it is a domestic enquiry, not akin to proceedings before a court of law.

"Therefore the standards of proof which are relied upon by the court while allowing a legal representation, as in the judgments relied upon by the Petitioner, cannot be adopted. These were the cases where the proceedings took place before a court of law or a tribunal which has the trappings of a court of law. These judgments, therefore, are distinguishable on facts, and cannot be relied upon to seek a right of legal representation/ advocate before the ICC under the Act, when the Rules specifically prohibit a legal practitioner to appear," it added.

Title: JOHNEY REBERIO v. UNION OF INDIA & ORS

Citation: 2022 LiveLaw (Del) 998

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